A contract without consideration is called a nvdum pactum (nude peel), but it is still EL pactum ; and this implies that consideration is not an es sential. The third objection of Mr. Stephen to the definition of Blackstone does not seem one to which it is fairly obnoxious.
There is en idea of mutuality in con and traho, to draw together, but we think that mutuality is implied in agreement as well. An aggregatio men Siam seems impossible without mutuality. Black stone in his analysis appears to have regarded agreement as implying mutuality; for be defines it (2 Blackstone, Comm. 442) "a mutual bargain or convention." In our definition, however, all ambi guity is avoided by the use of the words "between two or more parties" following agreement.
6. In its widest sense, " contract" includes re cords and specialties; but this use as a general term for all sorts of obligations, though of too great authority to be now doubted, seems to be an undue extension of the proper meaning of the term, which is much more nearly equivalent to ment," which is never applied to specialties. Mu.
tuality is of the very essence of botb,—not only mutuality of assent, but of act. As expressed by Lord Coke, Aetna contra action. 2 Coke, 15; 7 Mann. & G. 998, argum. & note.
7. This is illustrated in contracts of sale, bail ment, hire, as well ss partnership and marriage; and no other engagements but those with this kind of mutuality would seem properly to come under the head of contracts. In a bond there is none of this mutuality,—no act to be done by the obliges to make the instrument binding. In a judgment there is no mutuality either of act or of assent. It is judicium redditum in invitem. It may properly be denied to he a contract, though Blackstone in sists that one is implied. Per Mansfield, 3 Burr. 1545; 1 Cow. N. Y. 316; per Story, J., 1 Mae. C. C. 288. Mr. Chitty uses " obligation" as an alterna tive word of description when speaking of bonds and judgments.' Chitty, Contr. 2, 4. An act of legis lature may be a contract ; so may a legislative grant with exemption from taxes. 5 Ohio St. 361. So a charter is a contract between a state and a cor poration within the meaning of the constitution of the United States, art. 1, 10, clause 1. 27 Miss.
417. See IMPAIRING THE OBLIGATION OF CONTRACTS.
S. Accessory contracts are those made for assuring the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage, and pledges. La. Civ. Code, art 1764; Pothier, Obl. pt. 1, c. 1, s. 1, art. 2, n. 14.
Contracts of beneficence are those by which only one of the contracting parties is bene fited : as, loans, deposit, and mandate. La. Civ. Code, art. 1767.
Certain contracts are those in which the thing to be done is supposed to depend on the will of the party, or when, in the usual course of events, it must happen in the manner stipu lated.
Commutative contracts are those in which what is done, given, or promised by one party is considered as an equivalent to or in consider ation of what is done, given, or promised by the other. La. Civ. Code, art. 1761.
9. Consensual contracts are those which are formed by mere consent of the parties, such as all contracts of hiring and mandate.
Executed contracts are those in which no thing remains to he done by either party, and where the transaction has been completed, or was completed at the time the contract or agreement was made: as, where an article is sold and delivered and payment therefor is made on the spot.
Entire contracts are those the consideration of which is entire on both sides.
The entire fulfilment of the promise by either is a condition precedent to the fulfilment of any part of the promise by the other. Whenever, therefore, there is a contract to pay a gross sum for a certain and definite consideration, the contract is entire.
Executory contracts are those in which some act remains to be done : as. when an agree ment is made to build a house in six months; to do an act before some future day, to lend money upon a certain interest payable at a future time.
A contract executed (which differs in nothing from a grant) conveys a chose in possession; a contract executory conveys a chose in action. 2 Blackstone, Comn. 443. As to the importance of grants con sidered as contracts, see IMPAIRING THE OBLIGATION